In California, a party to a case has the right to demand the exchange
of expert witness information. At times, expert witnesses can make or
break a case, as demonstrated in a recent California Court of Appeal
decision, Perry v. Bakewell, which highlights the importance of timely exchanging expert witness information in a case.
In Perry, a defendant served a demand for expert witness
information on the other parties. The applicable California Code of
Civil Procedure required the parties to exchange information concerning
expert witnesses on or before the date of exchange specified in the
demand. While the defendant who served the demand and another party
participated in the exchange, the plaintiff did not.
The trial court determined that the plaintiff unreasonably failed to
exchange expert witness information. The ultimate result was that the
plaintiff lost on a summary judgment motion brought by a defendant
because the trial court excluded the plaintiff’s expert witness
declarations submitted in opposing the summary judgment motion. The
appellate court affirmed the trial court’s ruling.
This case serves as an example of the harsh ramifications if a party
fails to timely designate experts and exchange expert witness
information. Parties may prefer to hold off on retaining and designating
experts until absolutely necessary. However, it is always best to think
about retaining experts in advance to ensure that no issues will arise
in failing to timely designate experts.
Moreover, this case demonstrates how parties may use expert witness
demands, and a party’s failure to comply with the applicable code
requirements, as a tactical advantage.